The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 28, 2022
2022COA83
No. 19CA1629, People v. Garcia — Criminal Law — Disqualification of a Judge — Structural Error
A division of the court of appeals holds as a matter of first
impression that it is structural error for a statutorily disqualified
judge to preside over a case. COLORADO COURT OF APPEALS 2022COA83
Court of Appeals No. 19CA1629 Sagauche County District Court No. 17CR27 Honorable Amanda C. Hopkins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Donald L. Garcia,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TOW Berger, J., concurs Dailey, J., concurs in part and dissents in part
Announced July 28, 2022
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Donald L. Garcia, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
aggravated motor vehicle theft. This appeal requires us to consider
whether the fact that the judge who presided over the trial was
statutorily disqualified from doing so because of her prior
involvement in the case as counsel for defendant amounts to
structural error. We conclude that it does and therefore reverse the
judgment of conviction. Because we reject Garcia’s challenge to the
sufficiency of the evidence underlying the conviction, we remand for
a new trial before a different judge.
I. Factual Background
¶2 Garcia took his employer’s truck without his permission and
drove it off the road and across a drainage ditch, where it broke
down. The next morning, Garcia had a friend help him tow the
damaged truck back to his employer’s shop. The estimated repair
cost was $11,579.15.
¶3 Garcia was charged with first degree aggravated motor vehicle
theft on July 24, 2017. He was represented by Kate Mattern of the
State Public Defender’s Office. On April 17, 2018, Amanda
Hopkins, then a Deputy State Public Defender, appeared on behalf
1 of Garcia at a pretrial readiness conference at which he failed to
appear. As both parties concede, Judge Hopkins was appointed to
the district court bench on July 10, 2018. Judge Hopkins then
presided over the remainder of Garcia’s case, including all pretrial
hearings, the trial, and sentencing.
II. Disqualification of the Judge
A. Standard of Review and Applicable Law
¶4 We review de novo whether Judge Hopkins should have
disqualified herself. See People v. Julien, 47 P.3d 1194, 1197 (Colo.
2002).
¶5 “A judge of a court of record shall be disqualified to hear or try
a case if . . . [sh]e has been of counsel in the case.”
§ 16-6-201(1)(c), C.R.S. 2021. Judge Hopkins appeared as counsel
for Garcia at the pretrial readiness conference and was therefore
required to disqualify herself. See id. Her minimal level of
representation at the hearing does not change our conclusion.
Applying Julien to the defense context, “a judge must disqualify . . .
herself sua sponte . . . if facts exist tying the judge to . . . some role
in the [defense] of the case during the judge’s former employment.”
47 P.3d at 1198 (emphasis added). And if a judge “personally
2 participated in the [defense] of [the] case in any way,” she is
disqualified from serving as a judge in the case. See id. at 1200
(emphasis added). Because Judge Hopkins had “some role” in the
defense of the case and personally participated “in any way” in
Garcia’s defense, she erred by not disqualifying herself.1 See
§ 16-6-201(1)(c). Notably, neither party appears to assert that
Judge Hopkins’s appearance and minimal participation in the case
does not amount to her having “been of counsel” in the matter. See
id.
¶6 Further, we conclude that when a statutorily disqualified
judge presides over a case, it is structural error.
1 That being said, we intend no condemnation of Judge Hopkins. The record reflects that she was not Garcia’s assigned counsel and had filed no written entry of appearance. She appeared only at one court date, which was a pretrial readiness conference approximately one month before the then-scheduled trial date. It is not clear that Judge Hopkins ever met Garcia, as he failed to appear with her at the conference. And the minute order did not reflect Judge Hopkins’s appearance. Finally, although the transcript from the April hearing clearly shows Judge Hopkins’s appearance, there is no reason that, at that stage of the proceedings, either party or the court would have had the transcript prepared from a hearing at which Garcia failed to appear. Indeed, it appears the transcript was not prepared until the appellate record was being compiled. Thus, from this record, it is not surprising that Judge Hopkins would not have recognized her prior involvement in the case.
3 ¶7 In People v. Abu-Nantambu-El, 2019 CO 106, ¶ 39, our
supreme court held that when a potential juror who is statutorily
disqualified from serving pursuant to section 16-10-103(1), C.R.S.
2021, nevertheless serves on the jury, it is structural error. This is
so, the supreme court said, because such potential jurors “are
conclusively presumed by law to be biased.” Abu-Nantambu-El,
¶ 32.
¶8 In this respect, section 16-6-201 is analogous to section
16-10-103, in that it conclusively presumes that a judge who
previously served in the case as counsel is biased. No actual
enmity toward either side is required.2 We see no logical distinction
to be made between a statutorily disqualified juror and a statutorily
disqualified judge. See id. at ¶ 27 (noting that the Sixth
Amendment guarantees the “right to ‘an impartial adjudicator, be it
judge or jury’” (quoting Gray v. Mississippi, 481 U.S. 648, 668
(1987))).
2Nothing in the record suggests Judge Hopkins was actually biased against Garcia.
4 ¶9 Because Judge Hopkins was presumed by statute to be
biased, Garcia’s trial was “before a biased judge,” which is
structural error. See Hagos v. People, 2012 CO 63, ¶ 10.
B. Waiver
¶ 10 We also reject the People’s contention that Garcia waived this
claim.
¶ 11 Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). Just as
nothing in the record made Judge Hopkins’s prior involvement in
the case obvious to her, nothing made it obvious to Garcia or his
attorneys. Again, the minute order in the court file did not reflect
Judge Hopkins’s appearance at the April hearing, and there is no
reason to believe anyone had a transcript of that hearing prior to
trial. The brief and nonsubstantive hearing at which Judge
Hopkins appeared occurred three months before Judge Hopkins’s
appointment. Defendant did not appear in court on this case for
five months after Judge Hopkins’s sole appearance on his behalf.
The Deputy State Public Defender who handled the case between
the date Judge Hopkins appeared and the trial was John Hoag, not
5 Mattern (though Mattern rejoined Hoag as co-counsel at the trial,
which was over a year after Judge Hopkins’s appearance). Thus, it
is not clear from the record that Garcia’s attorneys recalled that
Judge Hopkins had previously appeared in the case.
¶ 12 Finally, we do not share the People’s concern that this could
lead to gamesmanship. The prosecutor had the same opportunity
to raise the issue as did Garcia. See Abu-Nantambu-El, ¶ 38.
¶ 13 In sum, nothing in the record suggests that Mattern, Hoag, or
Garcia was aware of Judge Hopkins’s prior involvement in the case,
either at the time of the judge’s assignment to the case or at the
time of trial. Thus, we discern no waiver.3 Accordingly, we must
reverse the judgment of conviction.
III. Sufficiency of the Evidence
¶ 14 Garcia also challenges the sufficiency of the evidence to
convict him of first degree aggravated motor vehicle theft. Because
retrial on this charge would be barred if this contention is
3 Because we conclude that neither Garcia’s nor his attorneys’ silence waived Judge Hopkins’s disqualification, we need not address Garcia’s argument that section 13-1-122, C.R.S. 2021, requires that any consent to Judge Hopkins presiding over the case must be on the record and come from Garcia personally, rather than his counsel.
6 meritorious, we must address the issue. In doing so, however, we
conclude that the evidence was sufficient.
A. Standard of Review
¶ 15 Both parties assert that we review sufficiency of the evidence
claims de novo. We agree, to a point. Both our supreme court and
divisions of this court have occasionally referred to the review of a
sufficiency of the evidence challenge as a “de novo review.” See,
e.g., People v. Vidauri, 2021 CO 25, ¶ 10; People in Interest of
K.D.W., 2020 COA 110, ¶ 37. However, this increasingly used
shorthand reference can be a bit misleading.
¶ 16 The original, and more complete, recitation of the standard is
that “[w]e review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005). We view the evidence as a whole and in the light most
favorable to the prosecution to determine whether the evidence was
“sufficient to support the conclusion by a reasonable mind that the
defendant was guilty beyond a reasonable doubt.” People v. Griego,
2018 CO 5, ¶ 24. In doing so, we give the prosecution “the benefit
of every reasonable inference which might be fairly drawn from the
7 evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.
Gonzales, 666 P.2d 123, 128 (Colo. 1983)). But, as the supreme
court has recently reiterated, in conducting this review, we “‘may
not serve as a thirteenth juror’ by considering whether we ‘might
have reached a different conclusion than the jury.’ Nor may we
invade the jury’s province by second-guessing any findings that are
supported by the evidence.” Thomas v. People, 2021 CO 84, ¶ 10
(quoting People v. Harrison, 2020 CO 57, ¶ 33).4 Put another way,
what we review de novo is not the ultimate conclusion of guilt by
the fact finder but, rather, whether the prosecution put forward
sufficient evidence to “[meet] its burden of proof with respect to
each element of the crime charged.” Martinez v. People, 2015 CO
16, ¶ 22. And the prosecution fails to meet this burden “[i]f the
evidence is such that reasonable jurors must necessarily have a
reasonable doubt.” Clark v. People, 232 P.3d 1287, 1292 (Colo.
4 These limitations make it clear that our review is not truly de novo, or “anew.” See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51, ¶ 19 (“Without the ability to make factual findings, it’s unclear how an appellate court could review factual determinations ‘anew.’” (citing Black’s Law Dictionary (10th ed. 2014))). Indeed, were we to truly review the evidence de novo, we would sit as a thirteenth juror and would be permitted to simply weigh the evidence differently.
8 2010) (citing People v. Bennett, 183 Colo. 125, 132, 515 P.2d 466,
470 (1973)).
B. Applicable Law
A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and . . . [c]auses five hundred dollars or more property damage, including but not limited to property damage to the motor vehicle involved, in the course of obtaining control over or in the exercise of control of the motor vehicle.
§ 18-4-409(2)(e), C.R.S. 2021. “A person acts ‘knowingly’ . . . with
respect to a result of his conduct, when he is aware that his
conduct is practically certain to cause the result.” § 18-1-501(6),
C.R.S. 2021.
C. Analysis
¶ 17 We disagree with Garcia that the evidence was insufficient to
show that he knowingly caused damage to the truck because there
was no evidence addressing the manner in which he drove the
vehicle.
¶ 18 Initially, we note that it is unclear whether the People were
required to prove that Garcia “knowingly” caused damage to the
9 truck. “When a statute defining an offense prescribes as an
element thereof a specified culpable mental state, that mental state
is deemed to apply to every element of the offense unless an intent
to limit its application clearly appears.” § 18-1-503(4), C.R.S. 2021.
However, proof that Garcia caused damage to the truck is a
sentence enhancer, not an element. See People v. Poindexter, 2013
COA 93, ¶ 82 n.2. The mental state does not necessarily apply to
sentence enhancers. See Garcia v. People, 2019 CO 64, ¶¶ 34-38.
Because the People do not argue this point, however, we will
assume without deciding that the People were required to prove
that Garcia knowingly caused damage to the truck.
¶ 19 The jury heard the following testimony:
The truck had a bent axle and tire, missing side rails,
broken levers on the steering column, and bent toolboxes
hanging beneath the truck bed.
To retrieve the truck Garcia and his friend “turned left off
into the sagebrush and down a couple of draws and then
turned up in a specific draw.”
“You could see where [Garcia] plowed through some little
bumps.”
10 Garcia admitted that he “wrecked” the truck and that he
“screwed up.”
¶ 20 We conclude that the jury could reasonably infer from this
evidence that this was not an accident but, instead, that Garcia
knowingly drove the truck over rough terrain for a considerable
distance and knew that his conduct was practically certain to
damage the truck. Accordingly, the prosecution presented
sufficient evidence of first degree aggravated motor vehicle theft.
IV. Disposition
¶ 21 We reverse the judgment of conviction and remand for a new
trial on the original charge before a different judge.
JUDGE BERGER concurs.
JUDGE DAILEY concurs in part and dissents in part.
11 JUDGE DAILEY, concurring in part and dissenting in part.
¶ 22 I agree with the majority’s sufficiency of evidence analysis.
But, for the following reasons, I would not reverse on structural
error grounds.
¶ 23 As the majority points out, Garcia did not object to his former
attorney presiding over the case upon that attorney’s appointment
to the bench. In my view, Garcia waived any claim that the judge
should have disqualified herself.
¶ 24 Initially, I assume, without deciding, that even though no
actual bias on Judge Hopkins’s part has been shown, it is
nevertheless structural error for a statutorily disqualified (i.e.,
impliedly biased) judge to preside over a trial. Cf. People v. Abu-
Nantambu-El, 2019 CO 106, ¶ 39 (holding that it was structural
error for a statutorily disqualified juror to sit on a jury because,
even though no actual bias was shown, the bias was implied as a
matter of law).
¶ 25 But “even fundamental rights can be waived, regardless of
whether the deprivation thereof would otherwise constitute
structural error.” Stackhouse v. People, 2015 CO 48, ¶ 8. Waiver is
“the intentional relinquishment of a known right or privilege.”
12 People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of Health v.
Donahue, 690 P.2d 243, 247 (Colo. 1984)). We review de novo
whether there was a waiver. See Bondsteel v. People, 2019 CO 26,
¶ 21.
¶ 26 A defendant who seeks to disqualify a judge must file a motion
within fourteen days of the case being assigned to that judge,
unless good cause is shown. Crim. P. 21(b)(1); see People v. Dist.
Ct., 192 Colo. 503, 507, 560 P.2d 828, 831 (1977) (holding that
Crim. P. 21(b) has uniformly been applied in disqualification cases
and that the time requirements in Crim. P. 21(b) apply whether the
movant expressly invokes that rule or “purports to proceed only
under section 16-6-201”). Unless the basis for disqualification is
actual bias, failure to timely request a substitution of judge waives
any claim that the judge should have recused herself. People v.
Dobler, 2015 COA 25, ¶ 7.
¶ 27 Although the statute deems Judge Hopkins to be impliedly
biased, it is not a statutory declaration that she is actually biased.
True, our supreme court in Abu-Nantambu-El said that a juror who
is deemed by statute to be biased “is legally indistinguishable from
an actually biased juror.” Abu-Nantambu-El, ¶ 2. However, that
13 statement was in the context of whether service by such a juror
would be treated as structural error. Id. The supreme court
explicitly acknowledged that failure to raise the statutory
disqualification would result in the issue not being preserved for
appeal. Id. at ¶ 37. Thus, unlike actual bias, disqualification based
on implied bias can be waived.
¶ 28 In my view, it defies logic to suggest that the deputy state
public defenders representing Garcia at trial would not have known
that Judge Hopkins had appeared at the April hearing. Indeed,
Mattern was the attorney of record both at that time of Judge
Hopkins’s single appearance in the matter and at trial. To suggest
that she did not know who appeared on her behalf assumes a level
of disregard for her cases that I am simply not willing to believe a
competent defense attorney would display. Not raising the issue
once Judge Hopkins had been appointed to the bench and assigned
the case qualifies, in my view, as an intentional relinquishment of a
known right.
It does not take a significant leap to imagine the possible strategic value of not seeking the disqualification of a judge whom, in light of her prior position, defense counsel may consider preferable to other judges in the district.
14 ¶ 29 Further, I disagree with Garcia that Judge Hopkins lacked the
authority to act under section 13-1-122, C.R.S. 2021, which
provides that “[a] judge shall not act as such in any of the following
cases: . . . when [s]he has been attorney or counsel for either party
in the action or proceeding, unless by consent of all parties to the
action.” In Kerr v. Burns, 42 Colo. 285, 290, 93 P. 1120, 1122
(1908), the supreme court noted that the argument that the “decree
was void because the presiding judge was counsel for one of the
parties at the inception of that proceeding” did “not go to
jurisdiction over the subject-matter.” Garcia’s argument is
therefore merely another disqualification argument. And by not
objecting, the parties consented to Judge Hopkins presiding over
the case. See id. at 291, 93 P. at 1122 (concluding that the parties’
failure to object during the proceedings was “acquiescence that
must be held equivalent to an affirmative consent”).
¶ 30 Because Garcia waived any challenge to Judge Hopkins’s
failure to disqualify herself based on an appearance of impropriety
or implied bias, I would reject this as a ground for reversal.